The
pith and marrow of this application is that the default judgment under
HC1210/10 was not properly obtained.
At
the time of the hearing, the applicant had already been evicted. In other words,
the judgment sought to be arrested by the interdict had been fully executed. To
cater for this problem, part of the interim relief sought by the applicant is
couched in the following terms:
“…,
if such eviction has taken place, the respondent be and are hereby directed to
give the applicant vacant possession of the premises.”
In
paragraph 9 of his answering affidavit, the applicant evinces that he seeks
restoration of possession after the eviction. He states:
“…,
it is the 1st respondent who is trying to cling on an unlawful order
and who is trying to delay the inevitable as it is just for the applicants to
be restored into vacant possession. 1st respondent has since gone
on to evict applicants …,.”
The
problem here is that the applicant seeks remedy for past invasion of his
rights. The applicant has already been evicted.
It
is trite law that an interdict is an extraordinary remedy, the granting of
which is at the discretion of the court hearing the application. An interim
interdict is not a remedy for past invasions of rights and will not be granted
to a person whose rights in a thing have already been taken from him by
operation of law at the time he or she makes an application for interim relief
– Stauffer Chemicals vs Monsato Co 1988
(1) 805 (T)…,; Meyer vs Meyer 1948
(1) SA 484 (T); and Airfield Investments (Pvt) Ltd vs Minister of Lands &
Ors 2004 (1) ZLR 511 (S)…,.
There
is, therefore, no merit in the application. It is accordingly dismissed with
costs.
